Being called as a witness in court can be stressful. People who have seen courtroom dramas on television and in the movies fear that the opposing lawyer will trip them up, twist their words, or make them look foolish. In my 32 years experience I have found that does not happen to an honest witness who understands his or her job is just to answer the questions. If you remember that it is the attorney’s job to make sure all of the evidence is presented, and it is your job just to answer the questions, you will be fine.
Here are some tips that I give my clients and witnesses. These may help you if you are called as a witness:
Getting over the jitters: I will go over your testimony and possible cross examination questions. That should help you feel less nervous. Going over these instructions should also help. If you still feel uncomfortable, I recommend you go to court ahead of time, find out what courtroom you will be testifying in, and watch the proceedings. I can help you make arrangements to visit the court at an appropriate time if you wish.
Dress: It is important that you dress appropriately for court. The clothes you wear should indicate that you consider this an important matter, and that you have respect for the judicial system.
- Men should wear a shirt with a collar and slacks. No jeans or t-shirts. Women should wear dress shirts and slacks or skirt, or dresses. Avoid too much make-up.
- Everyone should be clean and neat. Please shampoo your hair the night before, or the morning of your testimony. Men should have their side-burns and mustaches trimmed, as well as a neat haircut. Both men and women should have their hair combed so it is out of their eyes.
- Do not wear sandals or loud shirts or loud blouses.
Courtroom conduct: When you are sitting in the courtroom, please conduct yourself with dignity. Never make faces or remarks when someone else is testifying. Do not roll your eyes, shake your head, put your head in your hands, or make any other gesture that is in response to a witness’s testimony. The judge and jury hate to see people in the court room do such things, and they frequently misinterpret your body-language.
When you sit in the witness box, sit in a relaxed position, but do not slouch. Put your hands in your lap; do not fold them across your chest.
Tips when testifying:
- TELL THE TRUTH: The one most completely devastating thing that can happen is for you to lie regarding some element of the case. You may be assured that the other side will investigate thoroughly and discover the untruth. It only hurts the case if you do not tell the truth
- BE BRIEF: Listen to each question carefully, answer it completely and honestly but do not over-answer it. That is, do not go elaborate unless some elaboration is necessary to clarify your answer, and do not go on to another topic.
- LISTEN TO THE QUESTION AND ANSWER ONLY THE QUESTION. Do not second guess the attorney who is asking you the questions. Just remember that you have two strikes against you when you are on the witness stand: you are not familiar with the system, and you do not know the questions the attorney is going to ask, or why he or she is asking them–so second guessing is a loser’s game. Do not worry whether your answer is helping your case or whether you are being consistent; my job is to worry about that. All you have to do is tell the truth.
I have been practicing in trial courts since 1979. I have never seen an honest witness fooled by a lawyer.
- Do not ask the cross-examining lawyer a question. It shows belligerence. For example, a witness might ask, “Why is this relevant?” Do not ask such questions. It only gives the lawyer an opportunity to make a remark about your testimony and it irritates the judge and jury. Also, when you ask a question, it appears you are trying to avoid answering the lawyer’s question. There is only one exception: you must ask the attorney to repeat or rephrase the question if you do not hear the question, or do not understand the question.
- Be courteous and attentive to the opposing attorney. Under no circumstances should you get mad or lose your temper. I will be there to protect you if you are being mistreated. It helps to remember the opposing attorney is just doing his or her job.
- Do not look to me for help in answering the questions. I will object if you are asked an improper question.
- Do not testify to what someone has told you unless you are asked specifically about conversations with others.
- If you do not understand a question, say so. I have seen witnesses who are concerned that they look stupid, so they answer a question they do not understand. That could be a disaster
- If you do not hear a question, say so.
- If you do not know the answer, or you do not remember, say so. However, do not use, “I don’t remember” as an excuse not to answer. If you know the answer, answer the question.
- Do not guess at the answer to any question. Be especially careful where the question deals with dates, time, speed, or distance. You may estimate these if you are able but do not guess.
- Do not be afraid to admit that you have discussed your testimony with an attorney. Remember, that is the truth and you always tell the truth.
- Some people think they have to contradict the opposing attorney as much as possible. Others think they should agree with the opposing attorney as much as possible so that they appear unbiased. Do not try to be either too agreeable or too disagreeable when you are being cross-examined. JUST TELL THE TRUTH.
- Do not answer the question before the lawyer finishes asking. You might be tempted to hurry, because it is not pleasant to be cross-examined, and you want to get it over with. Take your time, and listen to the question carefully. Do not let the lawyer hurry you, either. Go at your own pace.
- Remember, I will have a chance to ask you questions again after the attorney cross-examines you. So, if there is anything that I feel has not been adequately explained in cross-examination, I will give you a chance to explain it.
- If you have been convicted of a crime, the other side may be able to bring it up during cross-examination. Let me know ahead of time, and I will file a motion to try to keep it out. Please do not surprise me on this.
Please remember: the other side may call you to testify before I do. They can. Do not worry about that; just keep in mind the instructions that I have given you.